Opinions

Interest of A.C. (CONFIDENTIAL) 2022 ND 123
Docket No.: 20220081
Filing Date: 9/15/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: While this Court defers to a tribe on its membership determinations, without consistent and clear factual findings supporting the application of ICWA and North Dakota heightened review for Indian families, this Court is unable to determine the father’s issues on appeal.

The Court retains jurisdiction and remands for the juvenile court to clarify its findings on ICWA and heightened state law and to hold additional evidentiary proceedings if necessary.

Interest of A.C. (CONFIDENTIAL) 2022 ND 123
Docket No.: 20220081
Filing Date: 6/8/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Lehnerz, et al. v. Christopher 2022 ND 122
Docket No.: 20210353
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A disorderly conduct restraining order is reviewed for an abuse of discretion.

Disorderly conduct means intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person.

There are limits on free speech and not all speech is constitutionally protected.

Lehnerz, et al. v. Christopher 2022 ND 122
Docket No.: 20210353
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

State v. Frohlich 2022 ND 121
Docket No.: 20210303
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A criminal judgment entered after a jury found a defendant guilty of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Frohlich 2022 ND 121
Docket No.: 20210303
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

State v. Tergesen 2022 ND 120
Docket No.: 20210309
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: A district court’s restitution order is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Tergesen 2022 ND 120
Docket No.: 20210309
Filing Date: 6/8/2022
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Blue Appaloosa v. NDIC 2022 ND 119
Docket No.: 20210292
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Tufte, Jerod E.

Highlight: The Industrial Commission’s jurisdiction does not depend solely on the filing of an application, but instead on the jurisdictional fact of intent. The Commission has the authority and duty to investigate potential violations of its regulations, including a failure to obtain a permit or file a bond.

The Commission has regularly pursued its authority, and its findings and conclusions that an operator began construction on a treating plant prior to obtaining a permit or filing a bond in violation of N.D. Admin. Code ch. 43-02-03 are sustained by the law and by substantial and credible evidence.

Blue Appaloosa v. NDIC 2022 ND 119
Docket No.: 20210292
Filing Date: 6/8/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Tufte, Jerod E.

Larson v. WSI 2022 ND 118
Docket No.: 20210333
Filing Date: 6/8/2022
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: An appellant must satisfy statutory requirements for perfecting an appeal to the district court from an administrative agency decision for the court to have subject matter jurisdiction.

A petitioner for a writ of mandamus must show there is no plain, speedy, and adequate remedy and that they have a clear legal right to performance of the act sought to be compelled by the writ.

Under N.D.C.C. § 65-04-32(2), an employer is required to file a request for reconsideration of a Workforce Safety and Insurance notice of decision within the statutory time limit, and the time requirement is not extended by N.D.R.Civ.P. 6(e).

Larson v. WSI 2022 ND 118
Docket No.: 20210333
Filing Date: 6/8/2022
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Gonzalez v. State 2022 ND 117
Docket No.: 20210289
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Post-judgment motions following a judgment denying post-conviction relief will be treated as another application for post-conviction relief.

District court orders denying an application for post-conviction relief are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

A proposed pre-filing order designating a person as a vexatious litigant is not appealable.

Gonzalez v. State 2022 ND 117
Docket No.: 20210289
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Wickham v. State 2022 ND 116
Docket No.: 20210313
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: A comment on a defendant’s post-arrest silence is an improper comment on the right to remain silent in violation of the Fifth and Fourteenth Amendments of the United States Constitution.

In considering whether counsel’s failure to object to a Doyle violation establishes a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different in the postconviction relief context, the district court must consider the factors outlined in State v. Wilder, 2018 ND 93, ¶ 9, 909 N.W.2d 684. They include: (1) the use to which the prosecution puts the post arrest silence; (2) who elected to pursue the line of questioning; (3) the quantum of other evidence indicative of guilt; (4) the intensity and frequency of the reference; and (5) the availability to the trial judge of an opportunity to grant a motion for mistrial or to give curative instructions.

A witness’s isolated reference to a defendant’s invocation of his right to counsel, without further elaboration or further mention by the State at any other time during the trial or in closing arguments, does not warrant a new trial for the defendant.

Wickham v. State 2022 ND 116
Docket No.: 20210313
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Schaff v. State 2022 ND 115
Docket No.: 20210337
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Schaff v. State 2022 ND 115
Docket No.: 20210337
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Atkins v. State 2022 ND 114
Docket No.: 20220006
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying an application for postconviction relief and a pre-filing order under N.D. Sup. Ct. Admin. R. 58 concluding the applicant is a vexatious litigant are summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Atkins v. State 2022 ND 114
Docket No.: 20220006
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Schmitz v. State Board of Chiropractic Examiners 2022 ND 113
Docket No.: 20210135
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Jensen, Jon J.

Highlight: A formal, evidentiary hearing is required whenever an administrative agency acts in a quasi-judicial capacity unless the parties either agree otherwise or there is no dispute of a material fact.

A summary judgment is inappropriate if a fact-finder must draw inferences and make findings on disputed facts to support its decision.

Even when facts are undisputed, a summary judgment may not be granted if reasonable differences of opinion exist as to the inferences to be drawn from those facts.

Schmitz v. State Board of Chiropractic Examiners 2022 ND 113
Docket No.: 20210135
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Administrative Proceeding
Author: Jensen, Jon J.

State v. Kelly (consolidated w/ 20210350) 2022 ND 112
Docket No.: 20210342
Filing Date: 5/26/2022
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal judgments entered after the defendant pleaded guilty to driving under the influence, fourth or greater offense, are summarily affirmed under N.D.R.App.P. 35.1(a)(7) and (8).

State v. Kelly (consolidated w/ 20210350) 2022 ND 112
Docket No.: 20210342
Filing Date: 5/26/2022
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

West Dakota Oil v. Kathrein Trucking, et al. 2022 ND 111
Docket No.: 20210326
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: The owner of a limited liability company generally is not liable for the company’s debts, obligations, or other liabilities.

District courts must sufficiently address each factor considered in piercing a company’s veil and explain how the factors do or do not apply.

West Dakota Oil v. Kathrein Trucking, et al. 2022 ND 111
Docket No.: 20210326
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Anderson v. Spitzer, et al. 2022 ND 110
Docket No.: 20210290
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court may modify residential responsibility if it finds a material change in circumstances and modification is necessary to serve the best interests of the child.

To warrant modification, the material change in circumstances must adversely affect the child or result in a general decline in the child’s condition.

Anderson v. Spitzer, et al. 2022 ND 110
Docket No.: 20210290
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

In the Matter of the Adoption of K.M.T. (CONFIDENTIAL) 2022 ND 109
Docket No.: 20210310
Filing Date: 5/26/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Highlight: Parental rights may be terminated upon a finding of abandonment.

A party seeking termination of parental rights must prove all elements by clear and convincing evidence.

Section 14-16-06(1), N.D.C.C., permits termination of parental rights in an adoption proceeding.

In the Matter of the Adoption of K.M.T. (CONFIDENTIAL) 2022 ND 109
Docket No.: 20210310
Filing Date: 5/26/2022
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Matter of Didier 2022 ND 108
Docket No.: 20210325
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: A district court’s order denying an application for discharge from civil commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Matter of Didier 2022 ND 108
Docket No.: 20210325
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

State v. Landrus 2022 ND 107
Docket No.: 20210304
Filing Date: 5/26/2022
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: This Court may consider an obvious error that affects substantial rights.

Jury instructions must correctly and adequately inform the jury of the applicable law.

Instructing the jury on the wrong subdivision of law is a plain error.

Sustaining a conviction based on jury instructions that do not require findings on every essential element of the charged crime violates due process.

State v. Landrus 2022 ND 107
Docket No.: 20210304
Filing Date: 5/26/2022
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

State v. Yellow Hammer 2022 ND 106
Docket No.: 20210209
Filing Date: 5/26/2022
Case Type: Appeal - Criminal - Homicide
Author: Tufte, Jerod E.

Highlight: Future medical expenses may be awarded as restitution to a crime victim if the amount can be ascertained from the evidence presented at a restitution hearing.

State v. Yellow Hammer 2022 ND 106
Docket No.: 20210209
Filing Date: 5/26/2022
Case Type: Appeal - Criminal - Homicide
Author: Tufte, Jerod E.

Rath v. Rath, et al. 2022 ND 105
Docket No.: 20210120
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: A district court has broad discretion on evidentiary matters and over the conduct of a hearing. A ruling on a motion in limine is reviewed under the abuse of discretion standard.

The right to closing arguments can be waived by the parties and narrowed by the courts, but it cannot be unilaterally denied.

To modify parenting time, a movant must establish a material change of circumstances has occurred since the prior parenting time order and that it is in the child’s best interests to modify the order.

A demand for change of judge, once granted, carries forward in any particular case, even when a new proceeding is filed in a divorce case triggering a new judge assignment.

The Supreme Court may, on its own motion or the motion of any party to an appeal, enter a pre-filing order prohibiting a vexatious litigant from filing any new litigation in the courts of this state as a self-represented party without first obtaining leave of a judge of the court where the litigation is proposed to be filed.

Rath v. Rath, et al. 2022 ND 105
Docket No.: 20210120
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Toman Engineering Co. v. Koch Construction, et al. 2022 ND 104
Docket No.: 20210186
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: The district court may exercise its inherent power to sanction when a party violates the duty to preserve evidence and destroys evidence relevant to the lawsuit.

The duty to preserve evidence may be discharged and the evidence may be destroyed if the custodial party has a legitimate need to destroy the evidence and has provided sufficient notice to the other parties allowing for a full and fair opportunity to inspect the evidence.

Toman Engineering Co. v. Koch Construction, et al. 2022 ND 104
Docket No.: 20210186
Filing Date: 5/26/2022
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Matter of Shane Lance Yates 2022 ND 103
Docket No.: 20220054
Filing Date: 5/12/2022
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: District court orders denying petitions for name changes and requests for evidentiary hearings are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Matter of Shane Lance Yates 2022 ND 103
Docket No.: 20220054
Filing Date: 5/12/2022
Case Type: Appeal - Civil - Other
Author: Per Curiam

Matter of Amy Jo Yates 2022 ND 103
Docket No.: 20220056
Filing Date: 5/12/2022
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: District court orders denying petitions for name changes and requests for evidentiary hearings are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Matter of Amy Jo Yates 2022 ND 103
Docket No.: 20220056
Filing Date: 5/12/2022
Case Type: Appeal - Civil - Other
Author: Per Curiam

State v. Rodriguez 2022 ND 102
Docket No.: 20210359
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: A district court’s dismissal of a criminal information is reviewed for an abuse of discretion.

A criminal information must identify the defendant, and must be a plain, concise, and definite written statement of the essential facts constituting the elements of the offense charged.

State v. Rodriguez 2022 ND 102
Docket No.: 20210359
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

State v. Benter 2022 ND 101
Docket No.: 20210199
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: To represent oneself, a criminal defendant must voluntarily, knowingly, and intelligently waive the right to counsel.

A defendant’s conduct may be the functional equivalent of a voluntary waiver of the right to counsel.

A district court has a continuing responsibility during trial to decide whether a self-represented defendant is competent to present his or her own defense. To ensure the defendant is afforded a fair trial, a district court can appoint counsel for the defendant during trial if the court determines the defendant is no longer competent to present his or her own defense.

State v. Benter 2022 ND 101
Docket No.: 20210199
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

State v. Koval 2022 ND 100
Docket No.: 20210356
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Jensen, Jon J.

Highlight: When a party challenges an underlying order prohibiting contact in a proceeding for violating that order, the challenge constitutes an impermissible collateral attack on the underlying order.

State v. Koval 2022 ND 100
Docket No.: 20210356
Filing Date: 5/12/2022
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Jensen, Jon J.